항소심에서 원고의 청구가 감축된 경우에 독립당사자참가소송에 미치는 영향에 관하여 - 대법원 2022. 7. 28. 선고 2020다231928 판결과 관련하여

• 영문명: Legal Implications of the Amendment of a Claim to the Reduction by the Plaintiff in the Second Instance on the Procedure for the Intervention as an Independent Party – Regarding the Supreme Court Decision 2020Da231928, Rendered on July 28, 2022 –
• 발행기관: 한국민사소송법학회
• 저자명: 문영화
• 간행물 정보: 『민사소송』제29권 제3호, 329~384쪽, 전체 56쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.10.30

국문 초록

This article explores the legal implications arising when, in the course of an independent party intervention procedure, the plaintiff amends the claim by reduction during the court for second instance proceedings. It specifically analyzes how such a partial withdrawal affects those parts of the intervenor’s claim that are incompatible with the reduced portion of the main claim. The Supreme Court’s decision in case 2020Da231928 served as a catalyst for raising this underexplored issue. While there exists both case law and scholarly consensus regarding the situation in which the main action is entirely withdrawn in the course of an independent party intervention procedure, the partial withdrawal of the claim by the plaintiff in appellate proceedings had not been sufficiently examined, either in Korean jurisprudence or comparative legal literature, including Japanese sources. Under prevailing jurisprudence, where the plaintiff withdraws the main action in its entirety with the consent of both the defendant and the intervenor, who have participated in substantive proceedings, the remaining action proceeds as a joint litigation or as a single independent action, involving the intervenor and the remaining parties. However, no established precedent or scholarly doctrine addresses the procedural consequences where the plaintiff reduces the claim in part at the appellate stage, and such reduction conflicts with the claim asserted by the intervenor. The factual matrix of the subject decision involved a scenario wherein the intervenor in the preceding lawsuit reasserted as a plaintiff the very claim that had become incompatible with the partially reduced main claim during appellate proceedings. The Supreme Court, however, merely affirmed the res judicata effect of the first-instance judgment formula to the extent not reversed or amended on appeal, without offering any substantive legal reasoning on whether the part of the claim for intervenor that was incompatible with the plaintiff of the prior lawsuit, that is, the part of the plaintiff's claim in the case in question, was encompassed within the subject or scope of judgment in the appellate instance of the prior lawsuit. From a doctrinal standpoint, the legal treatment of the intervenor’s claim, insofar as it is incompatible with the withdrawn portion of the main claim, may be theorized: (i) such claim may be deemed ipso jure terminated; or (ii) it may be construed as having been transformed into an ordinary bilateral action between the intervenor and the adverse party, detached from the procedural framework of the original intervention. However, the former interpretation is subject to criticism for disregarding the procedural autonomy of the intervenor, particularly where the claim has been properly continued on appeal and the intervenor has made no independent disposition. The latter interpretation may raise concerns about procedural inconsistencies and complexity, as different procedural systems, such as independent party intervention and ordinary litigation, may be applied simultaneously to different parts of the same claim. This paper argues that where the intervenor’s claim is rendered procedurally defective due to its incompatibility with the partially withdrawn main claim, and yet the intervenor insists on maintaining the action despite consent to such withdrawal, the proper legal course is to dismiss the incompatible portion of the intervention for lack of procedural standing. This preserves the intervenor’s opportunity to reassert the substantive claim through a separate action, thereby upholding both procedural propriety and substantive justice. Furthermore, as the procedural requirements for independent party intervention are subject to ex officio examination, the issue may be judicially addressed even in the absence of an appeal or cross-appeal by the intervenor.

목차

Ⅰ. 머리말

Ⅱ. 항소심에서 청구의 감축

Ⅲ. 항소심에서 독립당사자참가소송의 심리와 본소의 감축

Ⅳ. 대상판결에 대한 검토

Ⅴ. 맺음말

참고문헌

키워드

독립당사자참가소송 합일확정 항소심 청구의 감축 소의 일부 취하 Procedure for the intervention as an independent party being determined for all litigants only as a unified matter Court for second instance Amendment of a claim by reduction Withdrawal of an action in part